HomeMy WebLinkAboutBARNES AND THORNBURG BARNES&1 1 lOR V B V,CSG LI-P 11 South Meridian Street
Indianapolis,IN 46204-3535 U.S.A.
James M.Gutting (317)236-1313
Partner Fax(317)231-7433
(317)231-7234
jim.gutting@btlaw.com www.btlaw.com
April 24,2017
City of Jeffersonville
Attn: Len Ashack, Utility Director
423 Lewman Way
Jeffersonville, IN 47130
Re: Jeffersonville Sewage Works Refunding Revenue Bonds, Series 2017
Dear Len:
The purpose of this letter is to confirm the terms and conditions under which our Firm
will serve as bond counsel in connection with the issuance of the above-referenced Bonds by the
City of Jeffersonville (the "Issuer") for sewage works refunding revenue purposes. I am
enclosing our Standard Terms of Engagement (January 2016). Throughout this letter the
"Matter" shall refer to our assistance with the bond issue. By signing this letter, you agree that
we may represent other clients in certain matters adverse to you as described in our Standard
Terms under the caption"Waiver of Certain Potential Conflicts of Interest".
Bond counsel is engaged to render an objective legal opinion with respect to the
authorization and issuance of bonds. As bond counsel, we do not advocate the interests of the
Issuer or any other party to the transaction. We assume that other parties to the transaction will
retain such counsel as they deem necessary and appropriate to represent their interests in this
transaction.
Barnes&Thornburg will perform the following services for the Issuer in connection with the
Transaction. Our fees for these services are included in our fees described below.
(1) Prepare the basic documentation for the Transaction, including certain
resolutions, together with affidavits, notices, resolutions and certifications related
thereto;
(2) Assist the Issuer in seeking from other governmental authorities such approvals,
permissions and exemptions as are necessary in connection with the authorization,
execution and delivery of the Bonds;
(3) Assist the Issuer in managing the "due diligence"process for the Bonds;
(4) Coordinate the scheduling and supervise the closing of the Transaction, including
preparation of required closing documents;
Atlanta Chicago Dallas Delaware Indiana Los Angeles Michigan Minneapolis Ohio Washington,D.C.
(5) Render our legal opinion (the "Opinion") regarding the validity and binding effect
of the Bonds, the source of payment and security for the Bonds, and the income
tax treatment of interest on the Bonds; and
(6) Prepare sufficient copies of a transcript containing the documents related to the
Transaction.
The Opinion will be executed and delivered by us in written form on the date the Bonds
are exchanged for their purchase price (the "Closing"). The Opinion will be based on facts and
law existing as of its date. In rendering the Opinion, we will rely upon the certified proceedings
and other certifications of public officials and other persons furnished to us without undertaking
to verify the same by independent investigation. Upon delivery of the Opinion at the Closing,
our responsibilities in the Transaction will be concluded.
Our duties as bond counsel are limited to those expressly set forth above. Among other
things, our duties do not include:
(1) Preparing any requests for tax rulings from the Internal Revenue Service;
(2) Preparing any blue sky or investment surveys;
(3) Drafting any state constitutional or legislative amendments;
(4) Pursuing any test cases or other litigation;
(5) After the Closing, providing any advice concerning compliance with any
continuing disclosure undertaking;
(6) After the Closing, providing any advice concerning actions necessary to assure
that interest paid on the Bonds will continue to be excluded from gross income for
federal income tax purposes (e.g., we will not undertake rebate calculations for
the Bonds without a separate engagement for that purpose); or
(7) Any other matter not specifically set forth above.
As bond counsel, we will not assume or undertake responsibility for the preparation of an
official statement or any other disclosure document with respect to the Bonds, nor are we
responsible for performing an independent investigation to determine the accuracy, completeness
or sufficiency of any such document. However, if a disclosure document will be used in
connection with the sale of the Bonds, our responsibility will include the preparation or review of
any description therein of: (i) the terms of the Bonds, (ii) the excludability of interest on the
Bonds from gross income for federal income tax purposes and the exemption of interest on the
Bonds from taxation in the State of Indiana, and (iii) our opinion.
As you are aware, our Firm represents many governmental and business entities. It is
BARNESÞBURG LLP
possible that, during the time we are representing the Issuer, some of our present or future clients
will have disputes or transactions with the Issuer. Our representation of clients is governed by
the Rules of Professional Conduct ("RPC"), as adopted by the Supreme Court of Indiana. Under
Rule 1.7(a) of the RPC, we are precluded from representing a client if representation of that
client will be directly adverse to another client unless (1) we reasonably believe we will be able
to provide competent and diligent representation to each affected client, (2) the representation is
not prohibited by law, (3) the representation does not involve the assertion of a claim by one
client against another client represented by us in the same litigation or other proceeding before a
tribunal, and (4) each client gives informed consent, confirmed in writing.
The Issuer agrees that we may continue to represent or may undertake in the future to
represent any existing or new client in any matter that is not substantially related to our work for
the Issuer in this transaction, even if the interests of such client in such other matter are directly
adverse to the Issuer. We agree, however, that your prospective consent to conflicting
representation contained in the preceding sentence shall not apply in any instance where, as a
result of our representation of the Issuer, we have obtained proprietary or other confidential
information of a nonpublic nature, that, if known to such other client, could be used in such other
matter by such other client to the material disadvantage of the Issuer.
The basis for computing our fees in this matter will be the hourly billing rate for each
lawyer who works on it. Generally speaking, our hourly billing rates vary in accordance with the
experience and seniority of the lawyers performing the services. These hourly billing rates are
adjusted annually, typically in December.
Although I will be the lawyer responsible for this matter, I may assign portions of the
work to be done to other Firm lawyers. Thomas Pitman will be one of those lawyers. In an
effort to affect greater efficiencies and to reduce total fees, I may also ask one or more of our
legal assistants to assist in this matter as well. Our hourly billing rates for legal assistants are
generally less that those of our lawyers; these rates are also adjusted annually. Our fee is usually
paid at the Closing out of Note proceeds, and we customarily do not submit any statement until
the Closing unless there is a substantial delay in completing the financing.
In connection with this engagement, we agree that Barnes & Thornburg LLP is enrolled
in and will verify the work eligibility status of all newly hired employees through the Federal E-
Verify program (unless and until the E-Verify program no longer exists). This confirms that
Barnes & Thornburg LLP has signed an affidavit stating that it does not knowingly employ an
unauthorized alien. We will provide a copy of that affidavit to you upon request.
If this letter does not correctly reflect your understanding of the terms and conditions of
our representation, please inform me, in writing, immediately.
BARNESÞBURG LLP
We are pleased to have this opportunity to be of service to you.
incerely,
OIL-- �- 11`�
James M. Gutting
JMG:da
Enclosure
AGREEMENT GIVEN:
CITY OF JEFFERSONVILLE, INDIANA
Printed:
Title: —
Date: 11 -7
DMS 496057,%1
BARNESÞBURG LLP
BARNESÞBURG LLP
STANDARD TERMS OF ENGAGEMENT FOR LEGAL SERVICES
This statement sets forth the standard terms upon which Barnes& Thornburg LLP accepts engagements to
act on behalf of its clients. Unless modified in writing by mutual agreement, these terms will be an integral part of
our agreement with you. Therefore, we ask that you review this statement carefully and write us promptly if you
have any questions. We suggest that you retain this statement in your file.
Our Client
The person or entity that we represent is the person or entity identified in our engagement letter and
does not include any affiliates or relatives of such person or entity. This means that, unless we specifically agree
otherwise, we do not have any lawyer-client relationship with your subsidiaries, parent company or other business
entities in a commonly controlled group, nor with your owners, shareholders, members, managers, partners,
directors, officers, employees or agents, nor, if you are an individual, with your spouse, children or other family
members. Therefore, our representation of you will not impair our ability to represent another client with interests
adverse to any such affiliate or family member without obtaining your consent.
Particularly in the case of business entities that are part of complex corporate structures, we are very
frequently not in a position to determine what entities may be affiliated with a client, or what the nature of that
affiliation may be. So we understand that you agree that we will not have a client relationship with any of your
affiliates as described above, regardless of any internal arrangements for the management and affairs between
our client and any such affiliate, or any operational commonality among such entities such as consolidated
administrative services, common in-house legal functions, or any overlapping officers, directorships or ownership.
If you have any concerns about this agreement or its implications,you should bring this to our attention forthwith.
The Scope of Our Work
With new clients, we follow the practice of describing the scope of our initial engagement in the letter we
send accepting employment. With existing clients, we may not provide a description as to new matters upon which
we are asked to provide services depending on the circumstances, but we will always be willing to provide such a
description if asked. In any engagement we will limit our services to those you ask us to perform and those we
deem reasonably necessary to accomplish the requested services. By way of illustration, we will not investigate or
opine on claims against third parties or insurance coverage that is or may be available unless it is so stated in our
engagement letter or you have specifically requested that we do so. Where you request specific services or advice or
otherwise limit our engagement, we will confine our activities to those limitations. In that event, you should
understand we will not investigate or advise you on other areas of law or potential consequences or issues arising
outside these parameters. We will likewise limit our engagement and scope of services as requested to
accommodate instructions to avoid incurring costs or to limit the amount of fees we incur. Such limitations may
result in our not taking steps or performing work that we would otherwise consider advisable.
At times we are asked by our clients to express our opinion as to the outcome of the matters on which we
are working. Such evaluations are necessarily limited by our knowledge of the facts and are based on the state of the
law at the time they are expressed.The outcome of legal matters and proceedings cannot be predicted with certainty.
Who Will Provide the Services
Customarily, each client of our Firm is served by a principal lawyer contact. The principal lawyer should
be someone in whom you have confidence and with whom you enjoy working. You are free to request a change of
principal lawyer at any time. Under the supervision of the principal lawyer, your work or parts of it may be
performed by other lawyers and legal assistants in the Firm. This delegation may be for the purpose of involving
lawyers, legal assistants,or other professionals with experience and knowledge in a given area or for the purpose of
providing services on the most efficient and timely basis. Whenever practicable, we will advise you of the names of
those lawyers, legal assistants and other professionals who work on your matters.
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Our legal assistants and other professionals are not lawyers but possess training, experience and skills that
enable them to assist our lawyers in discharging their responsibilities. They include law clerks (typically law
students), paralegals, lobbyists, investigators, patent agents, research librarians, environmental analysts, translators,
draftsmen and other technical(non-legal)specialists.
How Fees Will Be Set
In determining the fees we will charge for the legal services we will render for you, we will consider a
number of factors, including:
• The time and labor required, the novelty and difficulty of the questions involved, and the skill
requisite to perform the legal services properly;
• The amount of money or value of property involved and the results obtained;
• The time limitations imposed by you as our client or by the circumstances of the engagement;
• The experience,reputation and ability of the lawyers performing the services;and
• The likelihood that the employment will preclude other employment by our Firm.
Among these factors, the time and effort required are typically weighted most heavily. We will keep records of the
time we devote to your work, including conferences (both in person and over the telephone), negotiations, court
appearances, factual and legal research and analysis, document preparation and revision, and other related matters.
We strongly believe that peer discussion and review is an important element of providing quality services, and
so our time records will often reflect discussions between lawyers within our Firm concerning the matters in which
we have been engaged.
The hourly rates of our lawyers and legal assistants applicable to the type of engagement have an important
bearing on the fees we charge but are not necessarily the sole basis on which those fees are charged. Even where
hourly rates are used as the primary basis of computing our fees,they can and will be adjusted up or down according
to the circumstances. Our hourly rates are reviewed at least annually and may be changed periodically to reflect
current levels of experience of the lawyers and legal assistants involved, changes in overhead costs, and other
factors. Our statements based on hourly rates will reflect our applicable rates at the date of the statement,regardless
when the work covered by the statement was performed.
We are sometimes requested to estimate the amount of fees and costs likely to be incurred in connection
with a particular matter. Whenever possible we will furnish such an estimate, but always with a clear understanding
that it is not a maximum or fixed fee quotation. The ultimate cost is invariably more or less than the amount
estimated.
Other Charges
In representing our clients, there typically are other charges in addition to our fees that we itemize
separately and bill to them. These include fees charged by government agencies and charges from service
vendors, as well as clerical charges. Typical of such charges are messenger, courier and express delivery charges;
photocopying, desktop publishing or printing and reproduction charges; filing fees and charges, including charges
for electronic filings with governmental agencies and courts; court reporter fees for deposition transcripts and the
like; witness fees; travel expenses; computerized legal research charges; and charges made by outside experts and
consultants, including accountants,appraisers and other legal counsel(unless arrangements have been made for such
outside experts and consultants to bill the client directly). Certain of these other charges may represent more
than our direct cost to contribute toward covering our overhead expenses. We incur outside charges as agents
for our clients, who agree that these charges will always be paid on a regular basis. We may require that you pay
significant expenses directly or in advance.
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In some engagements that raise issues of foreign law it is necessary for us or the client to engage foreign
counsel. If we engage foreign counsel on your behalf, we will typically require you to pay us for the foreign
counsel's anticipated fees and charges before we remit payment to foreign counsel,and potentially before we engage
them. We are not guarantors of the work of foreign counsel nor are we in a position to review the adequacy of their
legal work or translation of documents. We engage foreign counsel to assist us specifically because we are not
licensed or familiar with the applicable legal system and therefore are not in a position to provide those
legal services or judge their adequacy. if you wish to participate in the selection of foreign counsel,you may do so.
Terms of Payment
We will bill you on a regular basis, normally each month, for both fees and other charges. We rely on you
to pay us promptly. Our fees and charges are due when you receive our statement. Also,if you do not pay us within
30 days of our statement or as otherwise agreed,you agree that we may discontinue providing services immediately
and withdraw from representing you after providing reasonable notice of our intention to do so. After withdrawal,
we may pursue collection of your account. You also agree that until we are paid in full on all of your legal
matters, and except to the extent otherwise prohibited or limited by law, we shall have a lien on all papers and
files in our possession related to any of the matters in which we have represented you, and any property recovered
or obtained as a result of our work on your behalf. You agree to pay the costs of collecting the debt, including court
costs, filing fees and reasonable attorneys' fees.
The Firm also reserves the right in its sole discretion to require an advance deposit at any time based
on past payment history, creditworthiness or other factors that may cause the Firm to conclude it is appropriate to do
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Advance Deposits
New clients of our Firm will ordinarily be asked to make an advance deposit with the Firm. Existing
clients may also be required to provide advance deposits for particular matters if the Firm believes that is appropriate
under the circumstances. Typically, the advance deposit is equal to the fees and other charges likely to be incurred
during a two-month period. The advance deposit is charged for fees and other charges as our legal services are
provided. Regular statements will be furnished to you for purposes of disclosing the fees and other charges which
have been deducted from the advance deposit and the amount which must be paid to replenish the advance deposit
to the agreed level. If the advance deposit proves insufficient to cover current fees and other charges on the
basis stipulated, we may request that the balance be increased. At the conclusion of our legal representation or at
such time as the advance deposit is no longer necessary or is appropriately reduced, the remaining balance of
it will be returned to you.
Any advance deposit we receive from you will be held in our trust account until it is charged for fees and
other charges for your account or is returned to you. No interest is paid on amounts held by us in our trust account.
In particular, court rules in jurisdictions in which we practice require that interest earned on pooled client trust
accounts is payable to a charitable foundation established in accordance with the court's rule. While your advance
deposit is held by us in our trust account, it remains your property. However,by making the initial advance deposit
and by replenishing or increasing it from time to time, you grant us a security interest in the balance of the advance
deposit we hold in our trust account from time to time to secure payment of incurred fees and other charges for
which you are responsible. You authorize us to apply the deposit to any fees and charges that you owe us for any
services we have provided.
Other deposits that we receive to cover specific items will also be held by us in our general trust account
(without interest)and disbursed as provided in our agreement with you, and you will be notified from time to time
of the amounts applied or withdrawn. Any amount remaining after disbursement will be returned to you.
Waiver of Certain Potential Conflicts of Interest
As you are aware, we have over 500 lawyers and other professionals representing thousands of clients in
various states, so it is foreseeable that our representation of our other clients may be or become directly adverse to
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your interests from time to time in matters on which our firm is not representing you. The Rules of Professional
Conduct governing lawyers generally prohibit a lawyer or law firm from representing one client in a matter directly
adverse to another client unless the affected clients provide informed consent confirmed in writing. In accordance
with such Rules, by agreeing to our engagement letter, you consent that our Firm may represent any other clients in
matters that are not substantially related to the matters on which we are representing you, even where our
representation of such clients may be or become directly adverse to your interests. For example, such
representations may include advising our other clients (i) on the scope of your property rights, (ii) in transactions
with you or negotiating or interpreting legal documents that affect your rights; (iii) on the existence, assertion or
defense of legal claims against you or that you may have against our other clients; or(iv) on any disputes with you,
even in court. You should bear in mind that your consent authorizes us to take on unrelated representations for
other parties or entities to whom we are adverse in matters, transactions or disputes on which we represent
you. Of course, the foregoing consent does not affect our obligation to protect confidential information you share
with us in connection with our representation of you and not to use such information to your detriment.
Services We Expressly Do Not Provide
Lawyers in our law firm may from time to time serve in elected or appointed positions with various
governmental or regulatory bodies. Members of our law firm must discharge those duties without regard to their
employment or association with the Firm, and more importantly, it would be a prohibited conflict of interest for
them to give any special consideration, benefit, or access to you or any other client of the Firm. Accordingly, you
acknowledge and confirm that your engagement of the Firm is not in consideration for or in contemplation of any
expected benefit to be derived from the activities of any elected or appointed official.
Client Responsibilities
You agree to be truthful with us,to cooperate fully with us, to provide promptly all information(including
documents and electronic data) known or available to you relevant to our representation. If your engagement
involves actual or potential claims or litigation,you have an obligation to preserve potentially relevant information,
including electronic data. It is important for you to ensure automatic deletions or record retention policies are
suspended as necessary to ensure this information is preserved. You should discuss these issues with us at the outset
of our engagement involving any claim or litigation, unless you have a sophisticated document retention policy and
program that addresses these matters and you are familiar with these requirements. You should also discuss these
issues with us as soon as a dispute or litigation related to any matter on which you have engaged us becomes
reasonably foreseeable. You also agree to respond promptly to our requests for direction and other communications
and to attend meetings and court proceedings at our request. You also agree to pay our statements for services and
other charges in accordance with these terms of engagement.
Use of Publicly Available Information
We will always protect nonpublic, confidential information related to your representation in accordance
with our professional obligations. It is, however, helpful for us to be able to describe our experiences in the practice
of law to assist others in choosing counsel and for other business reasons. Accordingly, we understand that you
authorize us, unless you specifically instruct us to the contrary,to truthfully disclose or describe to others
information related to our representation of you that is otherwise publicly available (e.g. in public filings,
government publications,press releases,on the Internet and the like).
Termination and Withdrawal
You may terminate our representation of you at any time without cause simply by notifying us. Your
termination of our services will not affect your responsibility for payment of fees and other charges incurred before
termination and in connection with an orderly transition of the matter.
We are subject to the Rules of Professional Conduct that require or allow us to withdraw from representing
a client in various circumstances. These may include any circumstances in which withdrawal can be accomplished
without material adverse effect on the interests of the client. Among other circumstances that may give rise to
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withdrawal, subject to the Rules of Professional Conduct, we may withdraw from representing you if you do not
fulfill your client responsibilities to us, including failure to pay our fees and charges, or if we determine that our
relationship has become impaired,such as by your failure to follow our advice relating to a representation.
We try to identify in advance and discuss with you any situation that may lead to our withdrawal and, if
withdrawal ever becomes necessary,will give you prompt written notice of our withdrawal.
Unless previously terminated, our representation of you in any matter will terminate upon our
completion of the services you retained us to perform. Generally,this will be indicated by your receipt of our final
statement for services rendered on that matter.
Except where applicable laws require otherwise, you agree that the following provisions will govern the
way we handle materials and records related to our representation of you. We typically store the materials we retain
in electronic form. We do not keep our copies of such materials and records indefinitely. We will discard or delete
the materials we retain related to your representation when we believe it is reasonable to do so, without further
notice to you. Accordingly, you are strongly encouraged to keep your own files related to our representation,
especially the important legal documents. So that you can do so, we will provide you with copies of materials we
have retained whenever you request them during our representation. Even after your matter is completed,on request
we will provide you with copies in electronic form of any materials we still have to which you are entitled. You
agree to pay our charges for retrieving and copying materials for you, and any other fees and charges that
remain outstanding in connection with our representation of you. We may require such payment before
delivering such materials. You authorize us to follow these procedures without providing you further notices
or seeking further instructions in the future.
Our representation of you in any matter is limited to that specific matter, and will not give rise to any
ongoing attorney-client relationship. After termination of our representation of you in any matter, we may from
time to time represent you in such subsequent matters as you may request. However, we are under no obligation to
represent you in any subsequent matters, and nothing herein should be construed to give rise to any attorney-client
relationship after such termination. If we do undertake to represent you in any subsequent matter, the scope and
duration of our representation will be limited to that specific subsequent matter and, unless we expressly establish
new terms of engagement with you at that time,these terms of engagement will apply.
Lawyers sometimes become personally entangled in court proceedings in connection with their clients'
matters. If our Firm or any of our lawyers or staff are named as a party, or are required to produce evidence or
appear, in a legal proceeding as a result of our services performed for you (other than as a result of our misconduct
or negligence), you agree, even after our representation has terminated,to pay us for our lawyers' and non-lawyers'
time and other charges and advances incurred in connection with our defense or participation in such proceeding,on
the same basis that applies to our standard hourly fees and charges in effect at the time.
After termination of our representation of you in any matter, changes may occur in applicable laws or
regulations that could have an impact upon your rights and liabilities. Unless you subsequently engage us to
provide such advice on the same matter, our Firm has no continuing obligation to advise you with respect to future
legal developments.
(January 2016)
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